Europe after Maastricht : interim report : report, together with the Proceedings of Committee, Minutes of Evidence, and Appendices : first report [of the] Foreign Affairs Committee.

  • Great Britain. Parliament. House of Commons. Foreign Affairs Committee
Date:
1992
Catalogue details

Licence: Open Government Licence

Credit: Europe after Maastricht : interim report : report, together with the Proceedings of Committee, Minutes of Evidence, and Appendices : first report [of the] Foreign Affairs Committee. Source: Wellcome Collection.

    85/96 page 69
    DRAFT ANTITRUST ENFORCEMENT (NATIONAL COURTS) GUIDELINES Draft notice on the application of Articles 85 and 86 of the EEC Treaty by national courts I. INTRODUCTION 1. The primary responsibility for applying to firms Community competition law as laid down in Articles 85 and 86 of the EEC Treaty has been given to the Commission of the European Communities. However, this jurisdiction is not exclusive, and the courts of the member-states may themselves apply the competition rules. The Commission considers that it is in the interests of an active and effective com- petition policy and of all the economic operators concerned to expand and facilitate, as fast as possible, reliance on the decentralised decision-making machinery. The national courts have their own responsibil- ity and a key role to play in this respect. 2. The power of the national courts to apply Community competition rules arises from the principle of the direct effect of the relevant provisions and exists alongside the corresponding powers of the Commission and the national competition authorities. It has been expressly recognised by the Court of Justice of the European Communities. 3. In BRT v. SABAM,! the Court of Justice stated: As the prohibitions of Articles 85(1) and 86 tend by their very nature to produce direct effects in relations between individuals, these Articles create direct results in respect of the individuals con- cerned which the national courts must safeguard. The task of the national courts is thus not merely to decide on the applicability of the above-men- tioned Treaty provisions to the cases brought before them. They must also determine the effects in pri- vate law of prohibitions contained in the Treaty and award the parties those rights which the relevant applicable national law allows where Article 85(1) or Article 86 is infringed. 4. However, the Commission has sole power to exempt agreements, decisions and concerted practices pursuant to Article 85(3) from the prohibition laid down in Article 85(1),* Consequently, agreements, decisions and concerted practices of the type referred to in Article 85(1) must normally be deemed to be prohibited until such time as the Commission decides to exempt them. Any difficulties that might arise from this legal situation must be overcome through co-operation between the national courts and the Commission (see points 25 et seg. below). By contrast, Council or Commission regulations granting block exemption under Article 85(3) from the ban laid down in Article 85(1) to certain categories of agreements, decisions or concerted practices have direct legal effects. As the Court of Justice has consis- tently held,? the application of such block exemption regulations falls within the jurisdiction of the national courts. 5. The Court of Justice has also laid down principles governing procedures and remedies for breach of directly applicable Community law. In REWE V. HAUPZOLLAMT KEIL,’ the Court held that: Although the Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Court of Justice, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. On the other hand...it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning the admissibility and procedure as would apply where it is a question of ensuring observance of national law. The national courts must thus make available to individuals and companies in the event of breach of the Community competition rules all remedies provided for by national law on the same conditions as would apply if a breach of national law were involved. 6. National remedies must guarantee full and effective legal protection. For this purpose the national courts, applying Article 85(2), must declare null and void agreements, decisions or practices prohibited ! Case 127/73: [1974] ECR 51, [1974] 2 CMLR 238 at para. [16]; see also Case 37/79, MARTY y. ESTEE LAUDER;.[1980] ECR 2481 at 2500, [1981] 2 CMLR 143 at 157; Case 66/86, ZENTRALE SUR BEKAMPFUNG UNLAUTEREN WETTBEWERBS v. AHMED SAEED FLUGREISEN; [1989] ECR 803 at 845 et seq., [1990] 4 CMLR 102 at 131 et seq. 2 See Article 9(1) of Council Regulation 17; [1959-62] O J Spec. Ed. 87. 3 Case 63/75, FONDERIES ROUBAIX VY. FONDERIES ROUX; [1976] ECR 111 at 118, [1976] 1 CMLR 538; Case C-234/89, DELIMI- TIS V. HENNINGER BRAU; not yet reported, paras. [45] et seq. 4 Case 158/80; [1981] ECR 1805 at 1838, [1982] 1 CMLR 449 at 483; see also Case 33/76, REWE v. LANDWIRTSCHAFTSKAMMER SAARLAND: [1976] ECR 1989, [1977] 1 CMLR 533; Case 79/83, HARZ v. DEUTSCHE TRADAX; [1984] ECR 1921, [1986] 2 CMLR 430; Case 198/82, AMMINISTRAZIONE DELLE FINANZE DELLO STATO v. SAN GIORGIO [1983] ECR 3595, [1985] 2 CMLR 658.
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